Legally Speaking: Fighting for life or death, closing arguments start in Jodi Arias case

The fight starts; one is fighting for life and the other is fighting for death.

On Tuesday, the attorneys in the retrial of the penalty phase in State v. Jodi Arias started their closing arguments after almost five months of trial. In May 2013, a jury found Arias guilty of first degree premeditated murder but could not decide on whether to give her life or death. Due to their failure to reach a unanimous decision, the retrial of the penalty phase started in Oct. 2014.

The morning started with Judge Sherry Stephens reading the final jury instructions to the 14 jurors that were left in the jury box. The retrial started with 19 jurors, but five have since been dismissed for various reasons.

The judge instructed the jury that their job is to determine whether to sentence Arias to life in prison or to death. She further instructed them they are to follow the law and not be swayed by conjecture, passion, public feeling, sympathy or personal feelings they may have about Arias.

In other words, be a robot and simply decide on the facts and evidence presented. This jury instruction is confusing and almost unrealistic, because how can the jurors, as human beings, set aside their emotions and feelings?

That would be a tall order for even the most logical minded person. Apparently one thing they do not have to set aside is their morals, and Arias’ lead defense attorney Kirk Nurmi often referred to making a moral judgment.

The instructions also explained to the jury that Arias has the burden of proving any mitigating circumstances by a preponderance of the evidence. In other words, in this phase of the trial (aka the mitigation phase) she must convince them that it is more probable true than not true that the mitigating circumstance exists and that the circumstance is sufficiently substantial to call for leniency.

Typically it is the state that has the burden, and it is usually “beyond a reasonable doubt.” This is one of the few times when a defendant has the burden, although it is a much lower burden.

Judge Stephens then read the nine mitigating factors Arias is alleging apply in her case.

1. She has no prior criminal history.
2. She was just 27 years old at the time she killed Travis Alexander.
3. She is remorseful.
4. She suffered both physical and emotional abuse as a child.
5. She suffered both physical and emotional abuse during her relationship with Alexander.
6. The abusive nature of her relationship with Alexander caused her to suffer extreme emotional distress.
7. She has been diagnosed with Post-Traumatic Stress Disorder.
8. She has been diagnosed with Borderline Personality Disorder.
9. Her psychological makeup could not cope with her relationship with Alexander.

After the instructions were completed, Nurmi took center stage as he tried to convince this jury to sentence his client to life and explained “this tale of imminent sadness.” He focused on the jury instructions, the mitigating factors, which included her mental health and her relationship with Alexander.

He explained to the jurors that each one of them alone is to make their own decision and that they should not be swayed by another juror’s decision. He said that they do not all have to agree on what should happen to Arias. This echoes what Judge Stephens had read to them earlier, that they have a duty to discuss the case with one another to reach a just verdict but that each must decide the case for themselves.

In a methodical and organized manner, Nurmi recounted the testimony and the evidence to the jury the defense claims proves each of the above listed mitigating factors. He went through Arias’ childhood and each of her four previous relationships with boyfriends.

Much of his discussion focused on the diagnoses of Borderline Personality Disorder and PTSD and how her actions throughout her life conformed to these “mental illnesses.” He often referred to Arias as a “mentally ill woman.”

Nurmi ended his first argument (he will have a chance to rebut what Juan Martinez argues) on a powerful and highly emotional note. He told the jurors that Arias is more than the events of June 4, 2008.

Nurmi proceeded to show the jury a series of pictures that included one of Arias with her brother when they were young children, one of her as a teenager with Bobby Juarez, two of her with Darryl Brewer and his son, the baptism picture with Alexander and the last one of her and Alexander smiling.

During the showing of the pictures Nurmi said to the 14 jurors in the box, “If you mark death on your verdict form you are killing this girl…you are choosing to end the life of that girl…you are choosing to kill Jodi…you are also putting an end to the life of the girl who converted to Mormonism for Travis Alexander, and if you mark death you are killing Jodi and the woman that Travis Alexander loved.”

Martinez then stood up, and within minutes of starting his argument displayed the graphic autopsy photographs of Alexander with this throat slit. He then proceeded to attack the claims made by Arias herself and her experts.

Barely taking breaths, he ticked off the mitigating factors and explained why the jury cannot believe what Arias has said occurred. He pointed out that her own words and what she now says occurred is completely inconsistent with what she was writing in her journal at the time.

The same day she alleges Alexander broke her finger she writes fondly of him in her journal without mentioning an argument or injury. On the day she alleges he was looking fondly at a picture of a young child, she writes in her journal that nothing of note happened.

Martinez explained the concept of “secondary gain” to the jury and that almost everything Arias now alleges happened then is being said for secondary gain to create scenarios that support her and justify her actions. This case is not about love or making love, it is about murder, he passionately stated.

Martinez then attacks the defense experts and explains why Dr. Demarte, the state’s expert, is correct and the others are not. He even told the jury that they are free to disregard what the mental health professionals say and they can judge the credibility of the witnesses themselves.

He explained how Alexander suffered and how much it must have hurt to be stabbed in the back while displaying the autopsy photo showing the multiple stab wounds.

Both sides are fighting. One is fighting for death, and the other is fighting for life. Both believe they are fighting for justice. This week we could find out which side the jury believes is the just one.